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<br />. , <br /> <br />~ <br /> <br />non-tributary. Such a claim woulO appear to be overexpansive. <br /> <br /> <br />The United States no doubt would support its claim to groundwater <br /> <br /> <br />based on 'a~~a~Lt_~&_U&~.. 4Zb U.S. 128 (197b). In the <br /> <br /> <br />~~~a~tk case. the Supreme Court held that a private groundwater <br /> <br /> <br />user in Nevada must cease pumping so that the water level <br /> <br />in a sinkhole in the Oevil's Hole National Monument could <br /> <br /> <br />be maintained at a sufficient level to allow the desert <br /> <br /> <br />pupfish. an endangered species. to propagate. The court. <br /> <br />however, very carefully avoided extending the reserveo rights <br /> <br />doctrine to groundwater. The water in Oevil's Hole was <br /> <br /> <br />found to be s~rface water affected by the Cappaert's groundwater <br /> <br />withdrawls. The reserved right involved in ~a~~a~~t was sur- <br /> <br />face water and not groundwater and thus provides no support <br /> <br /> <br />for the assertion that reserved rights extend to groundwater. <br /> <br />The concept of indian reserved rights has of yet not <br /> <br />encompassed grounOwater nor distinguished between tributary <br /> <br /> <br />and non-tributary groundwater. Since Colorado law recognizes <br /> <br />the interconnection between tributary groundwater and surface <br /> <br />water and deals with them conjunctively. the groundwater <br /> <br />issue in the reserved rights cases may be raised in that con- <br /> <br /> <br />text. While the quantification reserveo rights is not made <br /> <br /> <br />under state substansive law of appropriation, a judge may <br /> <br />find it a comfortable compromise to rule that reserved rights <br /> <br /> <br />encompass tributary groundwater but do not extend to <br /> <br />-6- <br />